IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20120001258 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states he refused to accept his Purple Heart in Vietnam after being severely injured twice.  

3.  The applicant provides:

* two pages from his service medical records
* DD Form 214 (Report of Separation from Active Duty) with an effective date of 17 August 1976

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He was inducted into the Army of the United States on 19 June 1968.  He enlisted in the Regular Army on 24 June 1968 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 45M (Aircraft Armament Subsystem Mechanic).

3.  He served two periods of service in the Republic of Vietnam.  He was assigned to:

* Battery E, 82nd Artillery from 9 May 1969 to 1 April 1970
* B Troop, 7th Battalion, 17th Cavalry from 16 August 1971 to 15 April 1972

4.  He provided two pages from his service medical records.

	a.  One page shows treatment for ringworm from 20 - 28 August 1969.  Treatment for a cut on his right forearm is also shown.

	b.  The second page shows he was injured in an aircraft accident on 
4 January 1970 where a gun blew up.  He received minor fragment wounds to his face, shoulder, and leg.  There is no indication the aircraft accident was the result of hostile action.

5.  Item 40 (Wounds) his DA Form 20 (Enlisted Qualification Record) does not contain any entries indicating he received any wounds.  Item 41 (Awards and Decorations) does not show the award of the Purple Heart.  There are no orders in his military records for the award of the Purple Heart.

6.  The applicant's name does not appear on the Vietnam casualty roster.

7.  On 17 August 1976, he was discharged.  He completed 6 years active service during the period covered by his last DD Form 214 that was characterized as honorable.  His DD Form 214 does not show he was awarded the Purple Heart.  

8.  Army Regulation 600-200 (Enlisted Personnel Management System), 
chapter 9 of the version in effect at the time, stated that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

9.  Army Regulation 600-10 (The Army Casualty System), then in effect, prescribed policies and procedures for the operation of the Army Casualty System.  These policies and procedures included casualty reporting, casualty notification, and survivor assistance.  The regulation stated that when reporting a casualty, a determination as to whether the casualty is "battle," "non-battle," or unknown was required in the initial report.

10.  A DD Form 173 (Joint Message Form), dated 20 June 1968 from the Chief, Casualty Division, Washington DC to the commanding general of U.S. Army Vietnam provided additional guidance in the determination of hostile action casualties in addition to that provided in Army Regulation 600-10.

	a.  Paragraph 3 stated, "The rule that has been applied in helicopter or aircraft accidents is that the cause of the accident must be directly attributable to action by the enemy rather than merely the presence of the enemy."  

	b.  The message goes on to state that enemy fire on the aircraft must have caused or directly contributed to the accident.  The fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, standing alone, to classify as hostile, casualties resulting from such accident.

11.  Army Regulation 672-5-1 (Military Awards), then in effect, stated the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services had been wounded, killed, or who had died as a result of a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The page he submitted from his military health record clearly shows he was injured in an aircraft accident where a gun blew up.  He received minor fragment wounds in his face, shoulder, and leg.  However, there is no indication the aircraft accident was the result of hostile action. 

2.  Guidance provided at the time distinguished between accidents classified as non-hostile or hostile.  This guidance specifically states that the fact that an aircraft is on or returning from a combat mission when an accident occurs is not sufficient, standing alone, to classify as hostile, casualties resulting from such accident.


3.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  



      ___________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120001258



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ABCMR Record of Proceedings (cont)                                         AR20120001258



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